Trump Admin Keeps Breaking The Law On The Border
In an administration known for stretching and/or breaking the law, lying to Congress and courts, as well defying Congress and courts, DHS, and especially CBP and ICE, have stood out for their rogue behavior. And, despite all the scrutiny of their actions in general and on the southern border in particular, it appears those agencies are still brazenly breaking the law and openly defying the courts.
The Refugee and Immigrant Center for Education and Legal Services has filed a complaint with DHS alleging that ICE is illegally holding five fathers and their children for longer than the 20 day period allowed under the Flores agreement of 1997. ICE has interpreted the Flores agreement as only applying to unaccompanied minors, despite the Ninth Circuit clearly ruling otherwise in 2016. Last December, an eight year old child died after being held in CBP custody for six days. The Flores agreement requires that CBP only hold detainees for 72 hours. In both cases, ICE and CBP have previously been rebuked by the courts for similar violations yet they continue to engage in this illegal behavior.
Meanwhile, the Trump administration has rolled out another new policy, the so-called Migrant Protection Protocols (MPP), which allows CBP to send asylum seekers back to Mexico while their claims are being heard in the US courts. An immigrant claiming asylum on US soil can not be deported without an interview to determine whether they have a “credible fear” of persecution in the country to which they are being deported. The MPP ignores that requirement, instead sending them back to Mexico and promising a hearing at a subsequent date. In addition, CBP is not asking these immigrants if they have a fear of being deported back to Mexico, which thereby allows for the possibility they will be sent to a place where they will be persecuted. In addition, even if an immigrant volunteers his/her fear of being returned to Mexico, the MPP has established an entirely new and significantly higher standard of whether that claim would be valid, replacing “credible fear” with “more likely or not” that they will be persecuted.
Because of the secrecy from DHS surrounding the MPP policy and its rollout, legal challenges have been difficult to mount because it was impossible to know what the exactly the policy was. But now the policy has gone into effect and is being expanded, the courts are reluctant to issue an immediate temporary restraining order and have forced the plaintiffs to seek a preliminary injunction. In addition, the legal justification that the Trump administration is using to justify the policy has never been tested in court.
In any case, this new policy and the new, higher standard for asylum protection from Mexico have been adopted in clear violation of the Administrative Procedures Act which requires regulations to cover any new polices. It appears that DHS has once again ignored this requirement just as Wilbur Ross is doing with the census citizenship question.
Finally, Rachel Maddow reported on the creepy, horrifying, and frightening doings of Scott Lloyd at the Office of Refugee Resettlement (ORR). Lloyd has apparently made it his duty to ensure that pregnant women in immigration detention do not receive access to abortion, despite their constitutional right to do so. To effectuate his seemingly self-determined policy, Lloyd directed his staff to provide him with details about any pregnant refugee. Those details include the date the pregnancy was reported, how the government found out about the pregnancy, the ID number of the refugee, the age of the refugee and where they are being held, the results of their pregnancy tests, the estimated gestation age, whether the pregnancy was the result of consensual sex or not and, if not, whether it has been reported as a sexual assault, and finally the date that the abortion was requested. Notes attached to the detailed reports indicate that the government may also be tracking the refugee’s menstrual cycle.
Lloyd had consistently refused to grant abortions to refugees requesting them and often sent such women to a selected list of so-called “pregnancy crisis centers” which are designed to talk women out of having abortions. In March, 2018, courts instructed to Lloyd to desist from “interfering with or obstructing” abortions and other pregnancy-related counseling and care. Yet, even after that court injunction, Lloyd and the ORR have continued to maintain this detailed tracking of pregnant refugees. While there is no indication that Lloyd has interfered with refugees trying to obtain abortions since the ruling, the fact that this detailed monitoring continues is, to say the least, disturbing. There are also questions about whether people accessing this information are, in fact, engaging in HIPAA violations that cover the confidentiality of patients’ medical care.
It is easy to underestimate just how lawless the Trump administration actually is. The disregard for Congress and the courts occurs so often and across so many areas of the administration it is difficult to fully identify and absorb. Without an executive branch willing to enforce and abide by court orders, those rulings essentially becoming optional advisories. Nowhere is that more apparent than with DHS and the administration’s actions surrounding immigration.